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[2007] FCA 474
plaintiff. The Court made orders by consent under s 87 determining that non-exclusive native title exists in relation to the Part A lands and waters, to be held in trust by the Gunditj Mirring Traditional...
2 cited instruments linked from this judgment.
In 2007 Justice North sitting on country at Mt Eccles approved a long-negotiated agreement recognising the Gunditjmara People's non-exclusive native title over 133,000 hectares in western Victoria. The rights allow access, camping, resource use and protection of important places but give way to other valid interests. The claim area contains ancient eel aquaculture systems and stone villages dating back thousands of years. After an early hearing of elder evidence, expert meetings that narrowed 36 disputed issues to broad consensus, and a detailed tenure study, all 170 respondents agreed. The native title will be held in trust by a prescribed body corporate. The judgment praises the mediation process, notes that State parties need only find a credible basis rather than prove the entire case, and describes the outcome as both justice for the Gunditjmara and a step towards reconciliation for all Australians.
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2,383 words · generated 24/04/2026
The Gunditjmara People filed their first native title determination application in August 1996 (VID 6004 of 1998). A second application (VID 655 of 2006) was filed to capture additional Crown land and waters falling inside the outer boundary of the original claim but not included in it. Together the claims covered approximately 140,000 hectares bounded by the Glenelg and Wannon Rivers, extending east to the Shaw River, and including Lady Julia Percy Island and the coastal foreshore from the South Australian border to Yambuk. The area contains striking physical evidence of thousands of years of systematic landscape modification: stone fish traps, weirs, channels linking wetlands, and the remains of circular stone huts forming villages of between two and sixteen dwellings. The judgment reproduces at paragraph 4 a vivid description, drawn from a Commonwealth Government publication tendered in evidence, of the Dreaming story of Budj Bim (Mount Eccles), the Tyrendarra lava flow, and the Gunditjmara transition from forager to aquacultural society that supported high population densities and hereditary chiefly leadership.
One hundred and seventy respondents were joined, representing State and Commonwealth interests as well as mining, farming, local government, fishing, beekeeping and recreational users. These were organised by the Court into 27 groups to simplify management. In December 2002 mediation was ordered. Between 2004 and 2005 the applicants supplied anthropological assessments, genealogies and affidavits. The State was not initially persuaded. To break the impasse the Court conducted an early evidence hearing on country on 30 and 31 March and 1 April 2005 at which senior Gunditjmara witnesses, including Eileen Maude Alberts, John Maxwell Lovett and Damien Bell, gave evidence about connection, intergenerational transmission of knowledge, and the link between archaeological features and contemporary claimants. The State’s senior counsel later acknowledged that this evidence improved understanding of the anthropological model, the normative system of laws and customs, and the sanctions for breach.
Thereafter the Court ordered expert conferencing under O 34A r 3 of the Federal Court Rules. Two conferences produced a joint report recording consensus on 36 propositions that the parties regarded as encompassing all issues necessary for a settlement. On 28 November 2005 the State made a written offer recognising native title. After further clarification and four months of additional negotiation an in-principle agreement was reached in July 2006. The non-State respondents were then brought into the mediation. Concerns raised by the Commonwealth about geographic extent and the drafting of certain rights were met by release of further material. The Framlingham Aboriginal Trust, which had cultural heritage responsibilities over part of the claim area, initially stood apart but ultimately reached agreement after dedicated mediation sessions; an application to remove the Trust as a party was discontinued.
On 18 January 2007 the Court divided the claim into Part A (the area covered by the proposed determination) and Part B (an eastern enclave of about 3.5 % of the total area, overlapping the Trust’s responsibilities). Part B was adjourned by consent to a date not later than 30 September 2008 for further anthropological assessment of one enclave and continued mediation with the Trust. On 30 March 2007, sitting at Mt Eccles, North J made the consent orders attached to the reasons. The determination recognises non-exclusive rights to access and remain, to camp landward of the high water mark, to use and enjoy the land and waters, to take resources, and to protect places of importance. It identifies 7,600 hectares where native title has been extinguished and provides that native title yields to inconsistent other interests for so long as those interests subsist. The Gunditj Mirring Traditional Owners Aboriginal Corporation was nominated and accepted as the prescribed body corporate to hold the native title in trust.
North J structured his reasons around the two statutory conditions in s 87: that the orders be within power and that it be appropriate to make them. On power, the draft determination set out each of the matters required by s 225 and s 94A. The rights articulated—particularly the right to protect significant sites, the right to take water, and the relationship clause in paragraph 11 of the determination—were, in the Court’s view, rights recognised by the common law. The nomination of the Gunditj Mirring Traditional Owners Aboriginal Corporation satisfied ss 55, 56 and r 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999.
On appropriateness the judge emphasised that s 87 exists to give effect to the Act’s preference for mediation over litigation. The section is not to be read as requiring the Court to conduct, in effect, its own mini-trial of the connection evidence. Citing Nangkiriny v State of Western Australia (2002) 117 FCR 6, Ward v State of Western Australia [2006] FCA 1848 and Munn v Queensland (2001) 115 FCR 109, the Court held that the primary inquiry is whether a genuine agreement has been reached on an informed basis and whether the State has satisfied itself, after reasonable inquiry, that the application has a credible basis. The reasons record that the State, assisted by senior counsel and anthropologists, had conducted a “very thorough examination” and had formed the view that the applicants had a reasonably arguable case. The Court itself had supervised the process closely, received progress reports in open court, presided over the early evidence hearing, and visited cultural sites. That limited but compelling evidence—archaeological remains, oral histories, and official recognition of the Budj Bim National Heritage Landscape—provided an independent foundation for confidence in the settlement. Because the mediation had been conducted by experienced registrars, because experts had narrowed the issues dramatically, and because all respondents ultimately consented, the agreement was both informed and freely entered into. These factors satisfied the statutory requirement of appropriateness.
The judgment also records the Court’s active case management: directions hearings that injected “trial focus” while preserving mediation space, the use of deputy registrars to supervise expert conferences, and the insistence that the matter would not be allowed to “meander on”. This combination of encouragement and discipline produced the settlement. The judge’s final observations pay tribute to the parties, lawyers, experts and especially Registrars Anderson and Edwards, describing their work as “unique in my experience of these cases”. The outcome was therefore both a vindication of the Gunditjmara claim and a demonstration that sophisticated assisted dispute resolution can resolve even the most complex native title matters.
Before this judgment the law already contained the consent-determination mechanism in s 87, but its practical application varied widely. Some State respondents had insisted on exhaustive investigations that effectively replicated a full trial, producing “inordinate” delay. The judgment notes that “one reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties” and that the Act does not intend State inquiries to substitute for a Court hearing. Earlier authorities such as Munn had indicated that a State party must satisfy itself of a credible basis, but the precise content of that obligation remained unsettled. The Onus v Alcoa litigation (cited at paragraph 54) illustrated the long history of Gunditjmara resistance through the courts, yet that case concerned standing to protect cultural heritage rather than native title determination.
After the judgment the law is clarified in several respects. First, a State respondent discharges its duty by forming a view that the claim is reasonably arguable; it need not prove every element to the civil standard. Second, the judgment endorses a suite of procedural innovations—early evidence hearings on country, registrar-supervised expert conferencing under O 34A r 3, and tightly supervised mediation—as legitimate and effective tools. Third, it reinforces that courts should view mediation not as a lesser alternative but as a core function, consistent with the evolution of the judicial system toward a “court with many doors”. The emphasis on building trust in the shadow of “hard histories” of massacre and dispossession (the Convincing Ground massacre and the Eumeralla Wars are expressly mentioned) has become a recognised consideration in assessing whether an agreement is informed. The practical after-effect is that later consent determinations have routinely cited the need for a credible-basis assessment rather than a full forensic inquiry, and have adopted similar expert-conferencing and on-country evidence techniques to shorten the path to settlement.
Paragraph 36 states: “The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications.” In plain English, Parliament wants parties to talk and agree rather than fight in court; the judge’s job is to support that policy, not to second-guess the deal if it looks fairly reached.
Paragraph 38 contains the often-quoted observation: “The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application.” Translation: governments should not turn mediation into a shadow trial. They only have to decide the claim is credible, not prove it beyond reasonable doubt. Overly demanding State guidelines are implicitly criticised.
At paragraph 18 the judge quotes his own earlier remark after the early evidence hearing: “in light of what I have seen, and in the view I have formed in a preliminary way of the strength of the applicant’s case, I am not prepared to see this case meander on for very much longer.” Plain English: the evidence of fish traps, stone houses and living elders was so strong that the Court would no longer tolerate further delay; negotiations had to accelerate or the matter would be set down for trial.
Paragraph 49 describes the registrars’ process as standing “as a beacon for agreement making in native title cases”. This is judicial praise for the creative use of early evidence and expert conferences; later practitioners treat it as an invitation to replicate the model.
Paragraph 53 articulates a broader philosophy: “Unless the courts in Australia continue to reflect this development they will gradually decrease in relevance as the social institution for dispute resolution.” In plain language, if judges only offer courtroom battles they will become irrelevant; courts must offer mediation doors as well.
The reasoning is engaged whenever (1) a native title claim has been on foot for a considerable period, (2) the State has received and assessed connection material including anthropological reports, genealogies and, ideally, some on-country evidence from senior applicants, (3) expert conferencing has narrowed or eliminated the principal anthropological disputes, (4) a parcel-by-parcel tenure analysis has produced an agreed schedule of extinguishment, and (5) all respondents have been given an opportunity to participate in mediation and have either consented or had their interests accommodated by the non-exclusive nature of the rights and the priority clause. The presence of a national heritage listing or other official recognition of the cultural landscape strengthens the “credible basis” finding. The judgment is also triggered where a prescribed body corporate has been validly nominated and consents to act as trustee. Conversely, the precedent warns against consent determinations where the State has conducted only a cursory review or where the Court has had no supervisory involvement at all. The adjournment of Part B illustrates that partial settlement is acceptable where discrete issues (such as an enclave requiring further anthropological assessment or overlapping statutory responsibilities) remain live.
Although the judgment itself does not cite subsequent authority, its principles have been absorbed into the mainstream of native title practice. The articulation at paragraphs 37–38 of the limited nature of the State’s obligation to satisfy itself of a credible basis is routinely quoted to resist demands for exhaustive connection material. The endorsement of early evidence hearings and O 34A expert conferences is treated as judicial approval for active case management that keeps mediation and trial preparation running in parallel. The description of the registrars’ work as a “beacon” has encouraged other registries to adopt similar hybrid processes. The emphasis on trust-building against a background of frontier violence is now a standard consideration when courts assess whether an agreement is informed. The judgment’s celebration of the “court with many doors” is cited in support of the proposition that consent determinations are not a second-class outcome but the preferred statutory pathway. In short, Lovett is treated as confirming that s 87 is to be applied flexibly, that innovation in mediation technique is encouraged, and that the Court’s supervisory role can be robust without compromising the consensual character of the settlement.
The judgment itself flags several matters that remain unresolved. At paragraph 37 North J notes “there is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application”. The tension between thoroughness and expedition continues to generate debate; some States still produce connection guidelines that appear to demand more than the “reasonably arguable case” threshold endorsed here. The precise content of the right “to protect places and areas of importance” (Determination paragraph 5(c)) was the subject of debate among the parties but left to the agreed wording; its interaction with third-party interests may require further judicial elaboration. The relationship between native title and water rights (Determination paragraph 6) was also the subject of discussion; the non-exclusive framing leaves open questions about future regulatory regimes.
Part B of the claim was deliberately left outside the determination. The fate of the enclave and the continuing mediation with the Framlingham Aboriginal Trust illustrate that overlapping statutory responsibilities under heritage legislation can still complicate finality. More broadly, the judgment records the Gunditjmara People’s ongoing struggle to protect the Convincing Ground; the relationship between native title recognition and separate heritage protection regimes is not fully settled by this determination. Finally, the judgment’s call for courts to remain relevant by embracing multiple dispute-resolution doors raises an institutional question: how far should case management pressure be applied before it risks undermining the voluntariness that s 87 presupposes? These issues continue to occupy practitioners and will require future decisions to supply definitive answers.
REASONS FOR JUDGMENT 1 On 30 August 1996, an application (VID 6004/98) was filed on behalf of the Gunditjmara People for a determination of native title under the Native Title Act 1993 (Cth) (the Act). The proposed determination also applies to some lands within the outer boundary of the original application area but which were not the subject of that application. A second application was filed on 9 June 2006 (VID 655/2006) in order to include those areas of land. 2 The respondents totalled 170 individual parties encompassing not only State and Commonwealth Government interests but also mining, farming, local government, fishing, beekeeping, and recreational land user interests. These interests were allocated by the Court to 27 groups for ease of management. 3 The application area is bounded on the west by the Glenelg River, to the north by the Wannon River and extends as far east as the Shaw River. It includes Lady Julia Percy Island and coastal foreshore between the South Australian border and the township of Yambuk. The application for native title determination relates to Crown land and waters within the application area including state forests, national parks, recreational reserves, river frontages and coastal foreshores comprising 140,000 hectares. 4 The area and its significance has been described as follows: … Dating back thousands of years, the area shows evidence of a large, settled Aboriginal community systematically farming eels for food and trade in what is considered to be one Australia's earliest and largest aquaculture ventures. This complex enterprise took place in a landscape carved by natural forces and full of meaning for the Aboriginals who lived there. More than 30 000 years ago the ground in this area rumbled and rolled as Aboriginal people nearby witnessed Budj Bim, an important creation being from the Dreamtime reveal himself in the landscape. That volcano that today we call Mount Eccles, is his forehead and the scoria are his teeth. Budj Bim is the source of the Tyrendarra lava flow, which extends from Mount Eccles over 50 km to the west and south and which is central to the history of these local Aboriginal people, known as the Gunditjmara. As the lava flowed from Mount Eccles to the sea it changed the drainage pattern in this part of Western Victoria, creating some large wetlands. Beginning thousands of years ago, the Gunditjmara People started to develop this landscape by digging channels to bring water and young eels from Darlots Creek to low lying areas. They built stone dams to hold the water in these areas, creating ponds and wetlands in which they grew short-fin eels and other fish. They also created channels linking these wetlands. These channels contained weirs with large woven baskets made by women to harvest mature eels. The modified and engineered wetlands and eel traps provided an economic basis for the development of a settled society with villages. Gunditjmara used stones from the lava flow to create the walls of their circular stone huts. Groups of between two and sixteen huts are common along the Tyrendarra lava flow and early European accounts of Gunditjmara describe how they were ruled by hereditary chiefs. … I will return to this passage later in these reasons. 5 The Court sits today at Mt Eccles to hear and determine an application under s 87 of the Act. The section applies where parties to an application for determination of native title reach agreement on the terms of an order of the Court in relation to the proceedings. If the agreement is filed with the Court, s 87 gives the Court the power to make orders consistent with the agreement without holding a hearing or without completing a hearing which has started. The power is subject to two conditions, namely, that the terms of the orders of the Court are within the power of the Court, and that it is appropriate for the Court to make the orders sought. 6 The State has filed a submission, agreed to by the other parties, which argues that the Court should find that these conditions have been met, and that the Court should make a determination of native title in favour of the Gunditjmara People. 7 On 18 January 2007, the Court ordered that the application area be divided into Part A and Part B. Part B is an area of land on the eastern edge of the application area and Part A is the balance. Part B is not included in the proposed determination. 8 The proposed determination relating to Part A, recognises that the Gunditjmara People have non-exclusive native title rights over 133,000 hectares to access or enter and remain on the lands and waters, to camp on the lands and waters landward of the high water mark of the sea, to use and enjoy the land and waters, to take the resources of the land and waters, and to protect places and areas of importance (Determination par 5 and Schedule 2). It sets out the nature and extent of other interests in the area (Determination par 10 and Schedule 4), and the relation between the native title interests and the other interests (Determination par 11). In particular par 11 of the Determination provides that where and to the extent of any inconsistency between the native title rights and interests and the other interests, native title rights and interests have no effect during the currency of the other interests. The proposed determination specifies areas amounting to 7600 hectares over which the parties agree native title has been extinguished (Determination par 2 and Schedule 3). 9 The parcels of claimed land within Part B are identified in the orders made on 18 January 2007 and represent approximately 3.5% of the total area claimed. Part B is coextensive with that part of the claim area over which the Framlingham Aboriginal Trust presently has cultural heritage protection responsibilities under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). 10 The orders made on 18 January 2007 adjourned the proceeding relating to Part B by consentto a date to be fixed not later than 30 September 2008. The Court further ordered that the proceeding in respect of Part B continue in mediation. There are two remaining issues to be resolved in relation to Part B. The first relates to an enclave within this area that parties have agreed should be the subject of further anthropological assessment. It has been agreed that if the assessment is satisfactory to the State then the enclave would, subject to the consent of the other respondents, be resolved in the same terms as the proposed present determination. If not, it was agreed that the application relating to the enclave would be withdrawn. The second issue relates to continuing mediation between the Gunditjmara People and the Framlingham Aboriginal Trust, where it has also been agreed that either the claim will be resolved by consent or the application withdrawn.
Procedural History of the Applications 11 In order to determine whether it is appropriate to make the orders sought, it is necessary to examine the history of the applications. 12 The detailed steps taken in the process that have ultimately given rise to the agreement are set out in detail in the submission. What follows is largely taken from that submission. 13 In December 2002, the Court ordered mediation to be conducted by the National Native Title Tribunal (the Tribunal) 14 Between February 2004 and February 2005, the State was supplied with anthropological assessments, genealogies, and affidavits or statements by the Gunditjmara People to demonstrate that they had a connection to the country subject to the application. 15 In February 2005, the State provided its assessment of the connection material, but was not persuaded to agree to a consent determination. 16 In order to give impetus to stalled negotiations or for the purpose of preserving evidence, on 30, 31 March and 1 April 2005, the Court heard evidence on country from several witnesses including Eileen Maude Alberts, John Maxwell Lovett and Damien Bell. In all likelihood if the matter had proceeded to trial, other Gunditjmara people would have given further evidence about observance of their traditional laws and customs. The submission states that: …The evidence given in this 3 day hearing on country was generally regarded by the State and other respondents as assisting their appreciation of the way in which the claim was put and as enhancing the prospect of a mediated settlement... 17 At the conclusion of the hearing of the early evidence, Mr Neal SC, who appeared as senior counsel for the State, said that, as a result of the evidence given, the State better understood the anthropological model of the Gunditjmara society, the process of intergenerational transmission of cultural knowledge, the links between the archaeological evidence such as the fish traps at Lake Condah and the current claim group, and better appreciated the normative customs of the Gunditjmara including sanctions of inappropriate behaviour. 18 Further, at the conclusion of the early evidence hearing, the Court indicated some surprise that the negotiations had not proceeded more quickly in view of the strength of the evidence which had been led. The evidence included tangible evidence of the development of fishing technology, including the existence of fish traps and remains of housesites, suggesting a long standing connection with the country visited. Eileen Alberts and John Lovett gave evidence of their personal heritage and that of the Gunditjmara People. Evidence was also given that the heritage of the Aboriginal people of the area had been recognised by both Commonwealth and State Government sources. Indeed, the passage quoted in paragraph 3 of these reasons is a description contained in a public document produced by the Commonwealth Government and tendered in evidence by the Gunditjmara People at the early evidence hearing (Department of the Environment and Heritage, Budj Bim National Heritage Landscape). Further, evidence tendered at that hearing showed that some of the area had been included in the National Heritage List in July 2004, that is to say, less than 12 months before the early evidence hearing. The Commonwealth of Australia Gazette of 20 July 2004 outlined the heritage value of the area in terms which included the following: The eel traps along the Tyrendarra lava flow are of outstanding heritage value. Gunditj Mara people constructed channels to link wetlands; weirs to pond water; and, stone fish traps (Coutts et al 1978; Van Warden and Simmonds 1992; Aboriginal Affairs Victoria and Kerrup Jemara Elders Aboriginal Corporation 1993; Builth 2002, 2003). The constructions of weirs allowed Gunditj Mara to create or manipulate wetlands, providing ideal conditions to grow and harvest eels and fish (Builth 2002, 2003). The remains of the channels, weirs and fishtraps are hundreds and probably thousands of years old. … The remains of the system of eel aquaculture in the Mt Eccles/Lake Condah area demonstrate a transition from a forager society to a society that practised husbandry of fresh water fish (Builth 2002, 2003). This resulted in high population densities represented by the remains of stone huts clustered into villages of between two and sixteen huts (Coutts et al 1978; Van Warden and Simmonds 1992; Aboriginal Affairs Victoria and Kerrup Jemara Elders Aboriginal Corporation 1993; Clark 1990a). It also provided the economic base for a stratified society ruled by chiefs with a form of heredity succession to this office (Dawson 1881; Clark 1990a). … The landscape of the Tyrendarra lava flow in the Mt Eccles/ Lake Condah area is of outstanding heritage value because it provides a particularly clear example of the way that Aboriginal people used their environment as a base for launching attacks on European settlers and escaping reprisal raids during frontier conflicts (Clark 1990a, 1990b; Builth 2003). Conflict between Europeans and Aborigines was endemic on the frontier of European settlement (Reynolds 1976). Aboriginal people often used parts of the landscape that Europeans found difficult to access as a base for their resistance to encroaching European settlement. Many of these landscapes of resistance centred on areas where vegetation made access difficult and some of these landscapes have been altered since European settlement. Gunditj Mara used the Tyrendarra lava flow as a base from where they launched attacks on white settlers. Because the lava flow is uneven and rocky, Europeans and their horses found it difficult to penetrate the area. This allowed Aboriginal raiders to escape from attempted reprisals and to continue their resistance to European settlement for nearly a decade (Clark 1990a: 238-250, 1990b; Builth 2003). … The reference to some of this evidence explains why the Court concluded after the early evidence hearing: … in light of what I have seen, and in the view I have formed in a preliminary way of the strength of the applicant's case, I am not prepared to see this case meander on for very much longer. 19 The early evidence hearing led to a round of very intensive negotiations, but despite substantial progress in the understanding of the positions of the State and the Gunditjmara People, no agreement had been reached by mid 2005. 20 In those circumstances the Court determined that the process should then begin to focus on preparation for trial and to that end ordered that a conference of experts occur on 19 and 20 July 2005. The approach of the Court was outlined in the transcript of the directions hearing held on 10 June 2005 as follows: So I have still the twin aim of giving the parties a reasonable latitude to explore the possibility of resolution, but that is an ever diminishing resource. At the same time given that there is no overwhelming confidence of the parties that the matter will be resolved, I think I'm compelled to insist that a certain amount of trial focus is injected into the process immediately. Consequently having thought further about the issue it seems to me that the conferencing between experts should be undertaken not as part of the mediation, but rather as part of the trial preparation and what I would propose for the attention of the parties is that the meeting of experts be undertaken under the supervision of a registrar in the context of the case management conference. The difference is perhaps small, but nonetheless significant because I have in mind that a number of our registrars have had experience in similar situations and have determined a certain regime whereby experts meet and importantly in this case that in the meeting one of the issues on the agenda would be a proposed way of dealing with their evidence at trial and that's something that perhaps would not emerge from a mediation conference. What I have in mind is not only that the experts exchange views and identify what is agreed and what is not agreed, but under the supervision of a registrar with an eye to a trial that they work out, for instance, what questions have to be asked; what questions should be put to the court if it be done in that way; whether for instance a hot tub method would be useful; whether the registrars might, as was done in another case although in slightly different circumstances, prepare a report for the parties and the parties then move forward on the basis of that report or any other creative way of dealing with it. But I would, I think, be cautious about simply letting the matter be dealt with entirely in the mediation context given what I see as a real need to have a discipline in the case focused on a hearing, a contested hearing, if that eventuates. 21 The conference was convened by two deputy registrars of the Court and anthropologists for the Gunditjmara People and the State attended. The conference identified much common ground and it isolated a number of discrete issues on which there was still disagreement. 22 The initial conference of experts revealed the chance of more general consensus and led the Gunditjmara People and the State to request that the registrars who had organised the conference of experts conduct a more general mediation directed to the possible resolution of the applications by agreement rather than litigation. The request of these parties reflected the close and productive involvement of the registrars in the previous process. 23 At the same time, the collaboration of experts was progressed by an order under O 34A r 3 of the Rules of the Federal Court which provides: 3 Evidence by expert witnesses (1) This rule applies if 2 or more parties to a proceeding call, or intend to call, expert witnesses to give opinion evidence about the same, or a similar, question. (2) The Court or a Judge may direct: (a) that the expert witnesses confer; or (b) that the expert witnesses produce for use by the Court a document identifying: (i) the matters and issues about which their opinions are in agreement; and (ii) the matters and issues about which their opinions differ; or (c) that: (i) the expert witnesses give evidence at trial after all or certain factual evidence relevant to the question has been led; and (ii) each party intending to call 1 or more expert witnesses close that party's case in relation to the question, subject only to adducing the evidence of the expert witnesses later in the trial; or (d) that, after all or certain factual evidence has been led, each expert witness file and serve an affidavit or statement indicating: (i) whether the expert witness adheres to any opinion earlier given; or (ii) whether, in the light of factual evidence led at trial, the expert witness wishes to modify any opinion earlier given; or (e) that: (i) each expert witness be sworn one immediately after another; and (ii) when giving evidence, an expert witness occupy a position in the courtroom (not necessarily in the witness box) that is appropriate to the giving of evidence; or (f) that each expert witness give an oral exposition of his or her opinion, or opinions, on the question; or (g) that each expert witness give his or her opinion about the opinion, or opinions, given by another expert witness; or (h) that the expert witnesses be cross-examined in a certain manner or sequence; or (i) that cross-examination, or re-examination, of the expert witnesses be conducted: (ii) by completing the cross-examination or re-examination of an expert witness before starting the cross-examination or re-examination of another; or (iii) by putting to each expert witness, in turn, each question relevant to one subject or issue at a time, until the cross-examination or re-examination of all the witnesses is completed. 24 On 26 October 2005, the Court ordered: 1. Registrars Anderson and Edwards are pursuant to Order 34A Rule 3 of the Federal Court Rules to convene a conference of experts: Dr Ray Madden, Mr Geoffrey Bagshaw, Professor Basil Sansom and Dr John Morton on 28 and 29 October 2005 for the purpose of conferring and producing for use by the Court, a document identifying: (a) the matters and issues about which their opinions are in agreement; and (b) the matters and issues about which their opinions differ. 25 On 28 and 29 October 2005, the experts reconvened and achieved a high degree of consensus on 36 propositions which had been isolated for consideration. These 36 issues were regarded by the legal representatives for the Gunditjmara People and the State to encompass all issues necessary for evaluation for the purpose of agreement. 26 On 2 November 2005, the final report of the conference of experts was settled and it recorded the consensus arrived at in the conference. Then the State undertook a comprehensive review of the material in support of the application. On 28 November 2005, the State made a written offer of settlement which included the recognition of the Gunditjmara People's native title. 27 The offer was put to a meeting of the Gunditjmara People on 5 December 2005, and after an exchange of correspondence designed to clarify the State's position, it appeared by February 2006, that resolution in principle had been achieved. As a result, the Court mediation was expanded to include the non-State respondents. 28 It subsequently emerged that there was a significant issue upon which the State and the Gunditjmara People had not reached a meeting of minds which required further attention. After four months of review and negotiation, on 5 July 2006, the Gunditjmara People and the State confirmed that they had reached an in principle agreement on all issues. 29 After February 2006, when the original in principle agreement was reached, the Gunditjmara People and the State commenced a phase of closer and more open engagement with the non-State respondents focusing on two areas. First, to discuss, in general terms, the basis upon which the Gunditjmara People and the State had pursued mediation and second, whether the respondents' interests were likely to be affected by the proposed agreement, including any manner in which a respondent might consider contributing to a proposed settlement. 30 The Commonwealth of Australia expressed a number of concerns in relation to whether the proposed determination was justified by the existing connection material. The concerns related to the geographic extent of the proposed determination, and in one specific area, to the nature of the native title rights and interests to be recognised. In response to the Commonwealth's concerns, the State and the Gunditjmara People agreed that certain parts of the connection material which had passed confidentially between them should be made available to the Commonwealth, and additional public material was collected and presented to the Commonwealth. After further mediation, the Commonwealth indicated that it was prepared to endorse the proposed consent determination in principle. 31 The Commonwealth and some other respondents still had concerns about the drafting of the consent determination and were engaged in considering the detailed tenure extinguishment analysis as it affected land and waters in which they had an interest. 32 The State conducted a detailed tenure investigation of approximately 2000 parcels which are the subject of the applications. The investigation has been conducted parcel by parcel and involved reviewing tenure and title history, reservations, statutory instruments, and public works. Additionally, detailed study was undertaken of the legislative history of the regulation of commodities and activities such as minerals, stone, water and fisheries. The State and the Gunditjmara People agreed on a set of principles for assessing extinguishment. The results of the State's tenure investigation and extinguishment analysis were presented to the Gunditjmara People and the other respondents for scrutiny. Disagreements and queries were worked through to achieve an agreed position which is reflected in the table of area referred to in Schedules 2 and 3 of the Determination. 33 A further phase in the mediation commenced in August 2006 when the respondent, Framlingham Aboriginal Trust, raised certain issues in relation to the proposed agreement. The Trust had not played an active role in mediation prior to this date. Between August and early November 2006, a number of mediation sessions dedicated solely to the issues raised by the Trust took place with the Gunditjmara People, and sometimes with the State. The Court commenced to hear argument on an application of the Gunditjmara People for the Trust to be removed as a party. Before the Court was called upon to decide the application the Gunditjmara People and the Trust reached agreement in mediation and the application was discontinued. As a result the Trust supports the consent determination in the terms proposed and has agreed to the adjournment of the proceeding in respect of Part B.
The requirements of s 87 - Power and Appropriateness 34 It is now necessary to examine what s 87(1) means by the requirement that the Court consider the orders sought to be appropriate. 35 In the present case the Court has heard some evidence, but not a comprehensive case sufficient to establish the facts which would support a determination. Section 87(1) obviously contemplates that the Court can make orders in such circumstances because it applies when there is no hearing or no full hearing of the case. 36 The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37 In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case. 39 In the present case, the State has conducted a very thorough examination of the application. It has been represented by senior counsel experienced in the area and has utilised anthropologists to assess the anthropological basis of the application. The submission explains that the State regarded it as necessary to be satisfied that the Gunditjmara People have a reasonably arguable case. 40 The Gunditjmara People were also represented by experienced senior counsel and by solicitors from Native Title Services Victoria. 41 The mediation process was conducted by registrars of the Court who are expert in dispute resolution in native title cases. 42 The mediations are confidential and the Court is not privy to what happens in them. The detail of the mediation process referred to earlier in these reasons is taken from the submission. However, in this case the Court has exercised very close supervision and control over the process, and has received progress reports in open court on many occasions. This involvement allows the Court, from its own observation, to confirm the contention of the parties that the process of reaching agreement was fair, that it involved the exchange of voluminous information, detailed assessment against valid criteria, and that the agreement reached between the parties was a genuine agreement. In addition, the Court received documentary evidence, some limited evidence from several senior Gunditjmara people and visited important cultural sites. As explained earlier, this evidence provided a strong foundation for the success of the application. 43 For these reasons, I am satisfied that it is appropriate in the sense explained to make the orders sought. 44 It is next necessary to consider whether the terms of the order are within the power of the Court. Section 94A of the Act requires the order to set out the details of the matters mentioned in s 225 of the Act. The draft determination sets out each of those matters and therefore complies with the requirements of s 94A. Further, the Court only has power to make orders which determine rights and interests recognised by the common law. The submission outlines the debate between some of the parties about the articulation of some of the rights and interests, namely, the right to protect (Determination par 5(c)), the right to take water (Determination par 6) and the relationship between native title rights and other rights (Determination par 11). The Court notes the submission in this regard and concludes that the rights and interests articulated in the draft determination are rights and interests recognised by the common law. 45 I am satisfied that the terms of the order are within the power of the Court.
The Requirements of s 55 & 56 - Prescribed Body Corporate 46 Where the Court proposes to make a determination that native title exists it must determine whether the native title is to be held in trust and if so by whom: ss 55 and 56(1) of the Act. A nomination in writing to the Court that the Gunditj Mirring Traditional Owners Aboriginal Corporation (the Corporation) is to hold the rights and interests comprising the native title in trust for the common law holders pursuant to s 56(2)(a) has been filed. The Corporation is a body corporate which may be determined under s 56 to hold the rights and interests in trust for the common law holders (see s 59 of the Act and r 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999). It has consented to act in that capacity. Consequently, the provisions of s 56 are met and justify the making of par 7 of the orders sought. 47 Thus, the proposed orders including the proposed determination comply with the requirements of the Act and, shortly, I will make those orders. Before doing so I should like to make several final observations.
The Process of Agreement Making 48 The first observation relates to the process of agreement making in native title cases. It is true that the Gunditjmara People have waited a very long time, eleven years, for this proceeding to be finalised. However, it is in the nature of the issues addressed in native title litigation that resolution by agreement is a lengthy process. The intrusion into the personal histories of applicants is so radical that some reticence is understandable. Further, there is often a history of violence and dispossession against indigenous people to be addressed. Against such a background it is no surprise that the gaining of trust and confidence between the negotiating parties takes time to establish before meaningful discourse can occur. In the present case this element was captured by Damien Bell giving evidence concerning the restoration of the church at Lake Condah. He said: … with the activity of the church, we see that as an activity in reconciliation with the broader community, because here in the far southwest, we were one of the first places invaded in the early 1800s, so bringing - so that's led us to a lot of hard history between the indigenous and non- indigenous community. So we see the act of restoring the church as bringing people together, both indigenous and non-indigenous people, to - to address those issues that are there, those hard histories, because some of them are very - there's a lot of shame, there's a lot of anger involved in this histories and we want to get people together to talk about it, have a row about it, but ultimately to - to get together and address what has happened has happened, but to get to a stage where we can move forward as - as a - as a community that's representative of the indigenous and non-indigenous people of the far southwest. 49 The process developed by the registrars of the Court in this case stands as a beacon for agreement making in native title cases. The Court has now accumulated considerable experience in the jurisdiction and in this case used innovative procedures including early evidence hearing and conferences of experts to break through critical roadblocks. 50 Without goodwill and good people the negotiations would not have succeeded. The Court pays tribute to those who participated in the mediation and were responsible for this outcome. It has been obvious that all the parties, their lawyers and experts have invested enormous energy and skill, and particularly, tenacity, endurance and patience to produce the result. 51 The history of the process which has led to the agreement demonstrates the critical role played by the experts who participated in the order 34A conference. Particular acknowledgement should be accorded to Professor Basil Sansom, Dr John Morton, Dr Ray Madden and Mr Geoff Bagshaw for their important role in that process. By mentioning specific people I do not wish to exclude the contributions of all who were responsible for this happy conclusion. However, the very active case management conducted by the Court has placed great pressure on a number of people who were in the front line of the conduct of the case. As they responded so positively and even with a modicum of good humour, it is appropriate that I single them out for special appreciation. David Parsons SC, now Judge Parsons of the County Court of Victoria, and Rob Blowse SC, instructed by Annie Keely and Ann Daniel, for the Gunditjmara People, and Tony Neal SC with Peter Willis, instructed by Mary Scalzo, for the State of Victoria, had to face the blowtorch of a very demanding schedule imposed by the Court. No doubt they were each supported by a large number of other people. Most of those remain anonymous to the Court. However, it has been clear from the directions hearings that Graham Aitken and Ben Wurm on behalf of the State have played a central and highly constructive role. It is unusual for the Court to make such public acknowledgements of the work of those appearing before it. Indeed, judges are rather better known for their crankiness towards such people. The circumstances of this case however, mean that a judgment without such acknowledgement would leave the critical contributions unrecorded and would be a very poor and incomplete record of an important historical moment. 52 I am sure the parties and their advisers would join with me in acknowledging the outstanding work of Registrars Louise Anderson and Caroline Edwards who navigated the discussions through choppy waters with a creativity and strength well beyond the call of duty. Their dedication has been unique in my experience of these cases. The parties and the community owe a huge debt to them. 53 The successful conclusion of this proceeding by agreement of the parties also reflects the development of the court system in Australia. The system is designed as an instrument of our society to resolve disputes. In times past the emphasis has been on the provision by courts of judicial determination of disputes as the single means to achieve that end. But it has become more and more recognised that judicial determination is but one means of dispute resolution. A greater role is now given to dispute resolution by mediation and other methods such as early neutral evaluation. The advantages of parties to disputes taking control and responsibility for outcomes rather than leaving the results in the hands of judges are well recognised. Some disputes are particularly appropriate for assisted dispute resolution. Many native title cases fall within this category because the issues raised often concern the very identity, beliefs, culture and history of people. It is unlikely that an enforced resolution of such issues by judicial determination will be accepted or durable. The worldwide trend is towards the development of courts with many doors. One door leads to judicial determination, but other doors lead to other forms of dispute resolution. Unless the courts in Australia continue to reflect this development they will gradually decrease in relevance as the social institution for dispute resolution. The conclusion of this case using sophisticated techniques of assisted dispute resolution is a sure mark that this court embraces the modern concept of a court with many doors.
The Significance of the Agreement 54 Finally, I wish to address the significance of the agreement. To the Gunditjmara People the agreement vindicates their claim for recognition as the right people for the country. They have a history of defending their country against the settlers stretching back to white contact in about the mid 1830s. Many Gunditjmara people were massacred on Gunditjmara land at the Convincing Ground by whalers bent on protecting their commercial interests. The circumstances of history have forced the Gunditjmara People to defend their culture and their rights. In the early evidence hearing Eileen Alberts told the Court "We're fighting Gunitjmara. We'll continue to fight. This is our land. We belong to the land. We don't own it. We don't own it; it owns us." In the 1840s the Gunditjmara People fought the Eumeralla Wars against dispossession by Europeans. That occurred in the very place in which we sit today. John Lovett told how the police camped here at Mt Eccles to quell the uprising. In 1981 Lorraine Onus and Christina Frankland, two Gunditjmara women, fought all the way to the High Court of Australia to protect their cultural rights against damage by the construction of the Alcoa smelter in Gunditjmara country: Onus & Anor v Alcoa of Australia Ltd (1982) 149 CLR 2, and the fight to protect the significance of the Convincing Ground continues today. 55 This day therefore marks a special achievement for the Gunditjmara People. They have won another battle to cement their place in this country and in history. But their success is a shared victory. By doing justice to the Gunditjmara People, the State, the Commonwealth and the other respondents have taken a step to right past wrongs and lay a basis for reconciliation between indigenous and non-indigenous Australians. In this respect the agreement is a major achievement taken on behalf of and for the benefit of the people of Victoria, in particular, and for the people of Australia, more generally. To the extent that our society acts justly it is enhanced. This proceeding and its resolution has thrown light on the rich reality of Gunditjmara society in this place stretching back into the mists of time. The case has provided the means by which we may all recognise the rights and interests of the Gunditjmara People. 56 As a symbol of this recognition accorded to the Gunditjmara People by the non-indigenous law of Australia I will now hand to Gunditjmara traditional owners and the Attorney-General for the State of Victoria copies of the signed orders of the Court which evidence the act of recognition under Australian law that they are the right people for this country.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Dated: 3 April 2007 Hearing 30, 31 March and 1 April 2005:
Counsel for the Applicants: Mr D Parsons SC with Ms A Keely
Solicitor for the Applicants: Native Title Services Victoria
Counsel for the Group 1 Respondents: Mr T Neal SC with Mr J Davis
Solicitor for the Group 1 Respondents: Victorian Government Solicitor
Solicitor for the Group 3 Respondents: No appearance Australian Government Solicitor
Solicitor for the Group 4 Respondents: No appearance Moyne Shire Council
Solicitor for the Group 5 Respondents: Ms P Moreton Rigby Cooke
Solicitor for the Group 6, 8 and 9 Respondents: Mr J Buckingham Williams Love & Nicol
Counsel for the Group 10 Respondents: Mr R Skinner
Solicitor for the Group 10 Respondents: J G Thomspon (Solicitor)
Solicitor for the Group 11 Respondents: No Appearance Frenkel Partners Solicitor for the Group 13 Respondents: No appearance New Forests Asset Management
Solicitor for the Group 14 Respondents: No appearance Hancock Victorian Plantations
Solicitor for the Group 15 Respondents: Ms S Sheed Suzanne Sheed & Associates
Solicitor for the Group 21 Respondents: No appearance Port of Portland Pty Ltd
Solicitor for the Group 22 Respondents: No appearance Phillips Fox
Solicitor for the Group 23 Respondents: No appearance Mallesons Stephen Jaques
Solicitor for the Group 26 Respondents: No appearance VG Peters & Co
Solicitor for the Group 27 Respondents: No appearance Freehills
Counsel for the Applicants: Mr R Blowes SC with Ms A Keely
Solicitor for the Applicants: Native Title Services Victoria
Counsel for the Group 1 Respondents: Mr T Neal SC with Mr P Willis
Solicitor for the Group 1 Respondents: Victorian Government Solicitor
Solicitor for the Group 3 Respondents: Mr G Loughton Australian Government Solicitor
Solicitor for the Group 4 Respondents: No appearance Moyne Shire Cuncil
Solicitor for the Group 5 Respondents: Ms T Sheedy Rigby Cooke
Solicitor for the Group 6, 8 and 9 Respondents: Mr D Robens Williams Love & Nicol
Solicitor for the Group 10 Respondents: Mr G Thompson J G Thomspon (Solicitor)
Solicitor for the Group 11 Respondents: Mr D Clarke Frenkel Partners
Solicitor for the Group 13 Respondents: No appearance New Forests Asset Management
Solicitor for the Group 14 Respondents: No appearance Hancock Victorian Plantations
Counsel for the Group 15 Respondents: Mr G Moloney
Solicitor for the Group 15 Respondents: Suzanne Sheed & Associates
Solicitor for the Group 21 Respondents: Mr D Gardiner Port of Portland Pty Ltd
Solicitor for the Group 22 Respondents: No appearance Phillips Fox
Solicitor for the Group 23 Respondents: Mr D Gardiner Mallesons Stephen Jaques
Solicitor for the Group 26 Respondents: Mr V Peters VG Peters & Co
Solicitor for the Group 27 Respondents: No appearance Freehills
Date of Hearing: 30, 31 March, 1 April 2005 and 30 March 2007
Date of Judgment: 30 March 2007
Lovett on behalf of the Gunditjmara People
State of Victoria
The Court made orders by consent under s 87 determining that non-exclusive native title exists in relation to the Part A lands and waters, to be held in trust by the Gunditj Mirring Traditional Owners Aboriginal Corporation; native title was held extinguished over 7,600 hectares; the proceeding in respect of Part B was adjourned for further mediation.